Citation Nr: 0034119
Decision Date: 12/29/00 Archive Date: 01/08/01
DOCKET NO. 98-19 107 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for a back disorder claimed
as secondary to the service-connected hemorrhoids disability.
(The issue of whether a September 1998 decision of the Board
of Veterans' Appeals denying entitlement to an effective date
earlier than January 2, 1996, for the award of a 10 percent
rating for hemorrhoids should be revised or reversed on the
grounds of clear and unmistakable error, Docket Number 98-00
334, is the subject of a separate decision).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
INTRODUCTION
The appellant served on active duty from December 1971 to
February 1974.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a November 1998 rating decision of the
Jackson, Mississippi, Department of Veterans Affairs (VA)
Regional Office (RO).
It is noted that the appellant has filed additional claims
during the pendency of this appeal, to include entitlement to
an increased rating for hemorrhoids, service connection for
ulcerative colitis, service connection for a nervous disorder
and entitlement to benefits under 38 U.S.C.A. § 1151, and
while in various stages of development at the RO, none of
these claims are presently before the Board on appeal at this
time. The RO should carefully review the claims file to
determine what action is required to further process and/or
adjudicate these claims.
REMAND
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000) was signed into law. Among other things, this
law eliminates the concept of a well-grounded claim,
redefines the obligations of VA with respect to the duty to
assist, and supercedes the decision of the United States
Court of Appeals for Veterans Claims in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No.
96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order),
which had held that VA cannot assist in the development of a
claim that is not well grounded. This change in the law is
applicable to all claims filed on or after the date of
enactment of the Veterans Claims Assistance Act of 2000, or
filed before the date of enactment and not yet final as of
that date. Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, § 7, subpart (a), 114 Stat. 2096, ___ (2000).
See also Karnas v. Derwinski, 1 Vet. App. 308 (1991).
Because of the change in the law brought about by the
Veterans Claims Assistance Act of 2000, a remand in this case
is required for compliance with the notice and duty to assist
provisions contained in the new law. See Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114
Stat. 2096, ___ (2000) (to be codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because
the RO has not yet considered whether any additional
notification or development action is required under the
Veterans Claims Assistance Act of 2000, it would be
potentially prejudicial to the appellant if the Board were to
proceed to issue a decision at this time. See Bernard v.
Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92
(July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)).
Therefore, for these reasons, a remand is required.
Accordingly, this case is REMANDED to the RO for the
following development action:
The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light of
the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance that
is subsequently provided by the
Department, including, among others
things, final regulations and General
Counsel precedent opinions. Any binding
and pertinent court decisions that are
subsequently issued also should be
considered. If the benefit sought on
appeal remains denied, the appellant and
his representative should be provided with
a supplemental statement of the case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include a summary of the
evidence and applicable law and
regulations considered pertinent to the
issue currently on appeal. An appropriate
period of time should be allowed for
response.
Thereafter, the case should be returned to the Board, if in
order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
CHRISTOPHER P. KISSEL
Acting Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).